Opportunity missed in the High Court on the free speech of public servants

Before the High Court in August, distinguished barrister Jeremy Kirk SC addressed the elephant in the room. “No doubt there are some interesting issues over the horizon here,” he said, “interesting issues about social media and members of the public service and so forth, but this is a really extreme case.”

The extreme case was this: Army reservist Bernard Gaynor had commenced legal proceedings after having his commission terminated for publicly expressing homophobic and Islamophobic views. He won in the Federal Court on free speech grounds, but lost in the Full Federal Court. Following Kirk’s suggestion (he appeared for the Defence Force), the High Court elected not to hear the appeal.

For all public servants, the High Court’s failure to review the case is a great pity. While those “interesting issues” linger over the horizon, the ability of APS employees to speak their mind on political matters out-of-hours remains uncertain. With the Australian Public Service Commission continuing a crackdown on social media usage by public servants, this is no mere legal nicety but a pressing issue of public importance.

Public servants and free speech

Public servants are equal members of the Australian community and, ordinarily, enjoy the same rights and freedoms as any other citizen. However, the government has long sought to regulate the political expression of its employees – in 1902 a regulation was passed forbidding public servants from making any political comment. While the law has long since changed, the APS Code of Conduct is still regularly invoked against public servants who express disagreement with prevailing policy.

The real difficulty in this context is striking the right balance. Few would argue that public servants have an unrestrained right to criticise government policy. In the Gaynor High Court hearing, judge Patrick Keane posed a hypothetical: “If a minister of the Crown … were to make comments disparaging of the government policy and the Governor-General, on the advice of the Prime Minister, were to terminate the commission”, would that be unconstitutional?

The answer is obviously no, and similarly a department head could hardly use the constitution as a shield against dismissal for publicly criticising his or her minister. But when a departmental receptionist expresses their views at home and out-of-hours, the pertinent considerations are entirely different. In Gaynor, the appellant was not in uniform, not on duty and not an active member of the Reserves.

Watch and wait?

With the High Court preferring to remain on the sidelines, public servants will have to wait for another litigious dispute to elucidate the boundaries of their right to free speech. Whether that comes next year or next decade is anyone’s guess. But until it arrives, the Full Federal Court’s judgment casts a long shadow over the ability of public servants to express their political views.

Now, it may indeed be that the High Court’s position is ultimately for the best. Kirk repeatedly stressed that the Gaynor case was extreme, and – to alter a common aphorism – extreme cases make for bad law. There is also an “obvious difference”, in the words of Justice Keane, between Army reservists and public servants, which complicates the relevance of Gaynor to the employment law context. But these considerations are cold comfort for those in the APS who will have to operate under this continued cloud of legal uncertainty.

I will conclude with two suggestions for any would-be public servant litigant. The first: hire experienced lawyers (excuse the self-promotion) and have them frame your case with exceeding care. Gaynor was lost because, in the view of the Full Federal Court, the first instance judge incorrectly conceptualised the issue as one involving Gaynor’s purported individual right to freedom of expression (which Australians do not possess), rather than a protection for the implied freedom of political communication (discovered in the Australian constitution in the early 1990s). While this may be a distinction without a difference, to Australian courts it matters a lot.

In 2013, the same issue defeated public servant (and self-represented litigant) Michaela Banerji, who sued the Department of Immigration after they began disciplinary proceedings for anonymous criticisms of the government’s border policies she had posted on Twitter. Judge Warwick Neville of the Federal Circuit Court observed curtly: “The unbridled right championed by Ms Banerji … does not exist.”

Secondly, read the Federal Court’s decision in Bennett. To the best of my knowledge, this is the only Australian case which has invalidated public servant employment regulation on free speech grounds. In recent years Justice Paul Finn’s eloquent 2003 judgment seems to have been forgotten. But it provides much clarity as to the (limited) ability of the federal government to regulate the political expression of public servants.

In a line that I have quoted before, and will doubtless quote again, Justice Finn reminded us that public servants cannot be “silent members of society.” Indeed.

John Wilson is managing legal director at Bradley Allen Love and acted for the public servant plaintiff in Bennett. He acknowledges the assistance of his colleague Kieran Pender in the preparation of this article.

John Wilson is the managing legal director of Bradley Allen Love in Canberra and an accredited specialist in industrial relations and employment law. He has twice appeared on the Best Lawyers list, and has an extensive public sector employment practice.